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Construction defects: the association's responsibility or the owner's?

It's a common scenario: an association for a condo or residential development discovers serious construction problems. Perhaps water intrusion has led to widespread mold growth and structural damage. Perhaps poor-quality materials have deteriorated long before their lifespans. Or perhaps code violations come to light, requiring costly repairs.

These issues might give rise to a construction defect claim. Florida law establishes a process for pursuing accountability from the developer, contractor, supplier or other responsible parties. That process might culminate in a lawsuit.

Who's responsible for taking action

When is it appropriate for associations - as opposed to individual unit owners - to pursue a construction defect claim?

Florida law empowers homeowners associations to take legal action on behalf of their members for "matters of common interest." COAs are likewise authorized to bring claims concerning common interests of "most or all unit owners."

For both HOAs and COAs, those interests include common elements (such as shared amenities). They also encompass the roof, structure, mechanical components, plumbing, electrical and fire control systems of any buildings or improvements for which the association is responsible. As a result, associations might have claims not only for defects in the original construction, but also for improvements and repairs.

Issues affecting only a single unit, however, typically aren't the responsibility of the entire association. The governing documents of the association can shed further light on which elements are under its purview.

Why legal counsel is so important in navigating these complex issues

Associations (and their directors, officers and agents) must always act in the best interests of the owners. That means taking reasonable steps to investigate potential construction defects and pursuing legal recourse when warranted. Failure to do so can result in significant liability. For this reason, legal counsel is critical.

An attorney who understands Florida construction-defect law - specifically, as it applies in the context of community associations - can provide further guidance on when (and to what extent) associations are responsible for taking legal action.

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